Opinion
65935.
DECIDED JUNE 2, 1983.
Drug violation. DeKalb Superior Court. Before Judge Federal.
Charles L. Jurjevich, for appellant.
Robert E. Wilson, District Attorney, R. Stephen Roberts, Robert E. Statham III, Assistant District Attorneys, for appellee.
George Michael Worley brings this appeal from his conviction of violating the Georgia Controlled Substances Act. Held:
1. Defendant's first enumeration of error has no merit. The sanction for an unconstitutional arrest is not suppression of the prosecution. Lackey v. State, 246 Ga. 331 (2) ( 271 S.E.2d 478) (1980). Thus, assuming arguendo that defendant was arrested under an invalid arrest warrant, this circumstance alone "`has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. . . .'" Id. at 333.
2. Defendant's remaining enumeration asserts as error the denial of his motion to suppress his written confession on the ground that it was not voluntarily given. He argues that the confession was induced by the arresting officer's promise that "any cooperation he would give us would cause us to cooperate with him." The officer explained that his comments to the defendant in this regard were directed toward obtaining information regarding the source of the subject illegal drugs or regarding other individuals who might be involved in illegal drugs. The purpose of this comment was to elicit defendant's assistance by having him become a police informant in other cases, such assistance to be duly reported to the court handling defendant's case. Defendant was subsequently given a telephone number to call in order to provide police with information or in case he needed police assistance. On cross-examination defendant testified that the officers wanted him to take them to the source of the drugs; he refused. He never gave them any assistance, and they in turn never assisted him. It is clear from this evidence both defendant and the police understood that the offer of police "cooperation" did not refer to defendant's giving a statement or confession to the police in the case at bar. Accord, Murray v. State, 29 Ga. App. 207, 209 ( 114 S.E. 907) (1922); see also Stephens v. State, 164 Ga. App. 398 (3) ( 297 S.E.2d 90) (1982).
Defendant also argues that the confession was not voluntary because he was "afraid" and "in a state of shock" at the time he wrote it. Defendant's anxiety was purportedly caused by his arrest by two police officers with guns wherein he was handcuffed and taken to jail wearing only some shorts. The state, however, produced testimony which established a prima facie showing of voluntariness of the confession. See generally Harrington v. State, 139 Ga. App. 428 ( 228 S.E.2d 591) (1976); Lemon v. State, 80 Ga. App. 854, 857 ( 57 S.E.2d 626) (1950). The trial court was entitled to believe the state's evidence rather than the defendant's ( Davis v. State, 153 Ga. App. 847 (1) ( 267 S.E.2d 263) (1980)), and, since it was based upon evidence of record, the court's finding of voluntariness was not clearly erroneous. See Rogers v. State, 142 Ga. App. 387 (2) ( 236 S.E.2d 134) (1977); Trask v. State, 132 Ga. App. 645 (7) ( 208 S.E.2d 591) (1974).
Judgment affirmed. Quillian, P. J., and Sognier, J., concur.